In Krenzke v. Alexandria Motor Cars, Inc., No. 07-1561, 2008 U.S. App. LEXIS 17654 (4th Cir. Aug. 15, 2008), the court found that a doctor's note faxed to the employer stating, "I recommend 2 weeks of no work due to medical complications and illness" was sufficient to alert the employer of the possibility that the leave may be covered by the FMLA. The court observed that, "[a]lthough the note was summary in nature, it was received from a medical doctor and stated that an extended leave was needed for medical reasons." The burden of inquiry shifted to the employer to gather additional information and determine if the leave was actually covered by the FMLA. The employer did not inquire further. As such, the court concluded that Krenzke provided sufficient notice that she was entitled to leave under the FMLA.

Comment: The decision adds to the long line of cases that have addressed the tipping point where the employee has provided enough, albeit incomplete, information suggesting the possibility that the FMLA may be involved to shift the burden of inquiry to the employer. Some courts have required that the reason articulated for leave come pretty close to the criteria for one of the serious health condition definitions. Others, like the Fourth Circuit here, have shifted the burden of inquiry based on far less specific information. Employers, of course, need to figure out whether the standard in their Circuit is horseshoes (requiring fairly specific information) or hand grenades (requiring less employee specificity) before the burden of inquiry shifts to them.

In the Fourth Circuit, the source of an otherwise vague leave notice, a doctor rather than an employee, would appear to lower the bar for purposes of suggesting the possibility of FMLA leave and shifting the burden of inquiry to the employer. I say this because there are cases out there where employees have asked for lengthy periods of leave due to "illness," "sickness," and the like and courts have not shifted the burden of inquiry.

To play it safe, employers who receive notice of the need for lengthy employee leave via doctor's notes should consider making further inquiries to determine if the FMLA may be implicated.

The decision of the Fourth Circuit involves Title I of the FMLA. The MSPB has applied the Title I employee notice standard to civil service employees covered by Title II.